Villegas (Migration)

Villegas (Migration) [2018] AATA 5888 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Rhiena Villegas
VISA APPLICANT:  Mrs Alma CUENCA
CASE NUMBER:  1805475
HOME AFFAIRS REFERENCES:             02007654; 02013920; CLF2018/177595
MEMBER:Christine Cody
DATE:11 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 11 December 2018 at 10:04am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – does not genuinely intend to stay in Australia temporarily – visa to visit relatives – previously remained in Australia for five years after substantive visa expired – previously granted multiple bridging visas – lack of significant incentives to return to home country – minimal evidence of ongoing employment and income – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, Conditions 8101, 8201, 8503, 8531

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 December 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 7 December 2017. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. In support, the visa applicant provided relevant pages of her passports, bank documents, personal documents, a letter of support, evidence of relationship, and evidence of financial capacity of Australian contacts.
The visa applicant was born in 1960, and resides in San Antonio, Cebu City, Philippines. She intended to travel with Rainneli Gae Cuenca (her daughter) who was being sponsored by Jucel Villegas, an Australian citizen (“her niece”) and to visit for up to three months. She seeks to visit Australian relatives, including the review applicant (her sister) and her brother Roque Rodis. She also wanted to attend the wedding of her niece who will support her financially with accommodation and other expenses.
She does not intend to study in Australia.
Her occupation is a store space lessor. She is married. Her family not travelling with her include her husband, Pedro Cuenca and her son aged 27 years and her daughter aged 24 years (her 19 year old son still lives with her in the family home).
She produced documents including a family member’s birth certificate, bank statements, and documents for the niece showing she had over $60,000 in her bank account; evidence of the niece’s wedding and the review applicant’s Australian passport.
The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.600.211 because the delegate was not satisfied that a genuine visit was intended. It was noted that the visa applicant claims to be currently self-employed and has provided minimal evidence of ongoing work commitments and income. The delegate was not satisfied that there were significant economic ties to the Philippines which would induce her to return home within the validity of her visa. The delegate considered the offer of support provided by her sister and other relatives in Australia, however that is not in itself evidence of a genuine temporary stay. More importantly, Departmental records show that the visa applicant left Australia on 30 September 2002 on a bridging visa E (WE-050) after entering Australia on 5 November 1996 on a TN-686 visa which expired on 5 May 1997. This means that when she left Australia in 2002, her substantive visa had been expired for over five years.
Concerning her previous visa applications, the Tribunal notes that the visa applicant produced (for the current application) the pages of her passports showed the grant of a Subclass 686 visa for three months on 4 October 1986. She was then granted a bridging visa allowing her to stay in Australia for 28 days after notification of a primary decision on an application she had made in October 1986. In her current application form, she declared that when previously in Australia the Department refused to grant her a bridging visa E Subclass 050 and she applied to the Migration Review Tribunal (MRT) which application was refused. A further application to come to Australia in 2016 was denied; for reasons of a lack of financial documentation, and that she has more relatives in Australia than at home.
The Department had provided to the Tribunal the 2016 visitor visa application made by the visa applicant. This application confirmed that the visa applicant was not working (which is what the applicants told the Tribunal) and the reasons for refusal were essentially the same as for the current visa refusal.
After the refusal of the current application, the review applicant lodged an application for review. She also sought a fee reduction which was refused by Tribunal staff. It was stated that both she and her husband work but they have expenses so the fee would cause hardship. They could however afford to support the stay of the visa applicant because their two adult daughters would pay those costs. The review applicant paid the balance of the fee and the Tribunal found that it had jurisdiction.
Priority was sought on the basis that the applicants’ sister, Fe, has been in an aged care facility since May 2011 and has [an illness] ([Medical condition]) and her condition has worsened in the past 18 months. Supporting documentation (identification and other) were provided including a letter in support from the review applicant noting that their sister Fe has [an illness] and she is the elder of the family of 11 children and the review applicant would like the visa applicant’s support in Australia at this time.
The review applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone in the Philippines. Neither sought to use the services of an interpreter and the Tribunal was satisfied that both were able to understand the proceedings and present evidence and arguments. The review applicant’s evidence included the following: she is 55 years old; her sister is three years older (58). Her sister’s health is fairly good although she has arthritis for which she takes medication.
The review applicant’s basis for being in Australia is that she came here in 1987, sponsored by Fe. She is an Australian citizen. Fe remains in a nursing home. The Tribunal discussed the other siblings and whether or not they have visited or sought to visit Australia. The review applicant said:
·     Esperanza came to visit about 40 years ago. She complied with conditions of her visa and has not come again since. She was a beautician; now retired.
·     Sol came in 2016 as a visitor and she complied with her visa conditions. She has a general store mini-business.
·     Antonio Rodis is a marine engineer on a ship and drops in for a few hours when his ship is here. He has never overstayed his visa.
·     Caridad never applied to come. She passed away last year.
·     Roy Rodis has never applied to come to Austarlia. He is an accountant serving with the Catholic Church.
·     Roberto has never applied to come to Australia. He is a teacher.
·     Roque is a permanent resident who came to Australia in the same year and manner as the review applicant.
Concerning the visa applicant, she has not been working for about 15 years. She worked as an assistant manager in a department store prior to coming to Australia but when she returned to the Philippines she was busy with her adopted children. She is busy with church. When asked where she obtains income, the review applicant said that she is not getting money from anywhere except that they live in the family home and they get rent out some rooms and receive money. Her daughter is her main financial provider and another daughter who lives in Canada also helps out financially.
The Tribunal noted that the review applicant said that it was important for her sibling to come and see the applicants’ sister who has [an illness], yet the majority of the other siblings have not applied to come to Australia. The review applicant said this is because of money. The review applicant said that she promises that the visa applicant will abide by the visa conditions. Last time the visa applicant came and stayed too long, and as a result the review applicant has not sponsored anyone else until recently when she sponsored a few people. She said they were all just ignorant back then.
The visa applicant confirmed that she does not work, looks after two children and earns some money through boarders (as well as leasing her room for store space). She spends time assisting at church. She only planned to visit Australia the first time to see her mother because her mother was sick. She had young children whom she left with her husband.
Further relevant evidence and information is set out below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.
In the present case, the visa applicant seeks the visa for the purposes of visiting her sister, an Australian citizen. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.
In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).
The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl.600.611):
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia
·8531 – must not remain in Australia after end of permitted stay.
The Tribunal has also considered all other relevant matters (cl.600.211(c)). In doing so, the Tribunal considered, but is not bound by, the Department’s policy guidance contained in its Procedures Advice Manual (PAM3).
However, the Tribunal is not satisfied that the visa applicant intends a genuine visit in Australia. The Tribunal’s concerns have arisen upon a consideration of the evidence referred to above and below, and for the reasons set out below.
The Tribunal acknowledges that the visa applicant would like to see her sister in Australia whom the Tribunal is prepared to accept cannot travel back to the Philippines. While the Tribunal has sympathy for the visa applicant in this regard, as discussed with the review applicant, it notes that it must weigh up the incentives for the visa applicant to comply with, and not comply with, the conditions of a visa.
The review applicant’s evidence about the visa applicant’s previous temporary visit to Australia followed by an application to change her status to a permanent visa was as follows: the visa applicant came here 20 years ago. Their mother, who was sick, asked her to come. She came on a visitor visa for 12 months and their mother wanted her to stay. They sought advice and they trusted the agent and they thought he was helping them and he had a migration licence and said she can have a a good outcome to stay permanently. They did not have a clue, they trusted him and then he disappeared. The Tribunal sought clarification, asking whether they had reported the agent; she said they didn’t know what to do. They were duped by an agent who didn’t do the right thing, didn’t make the right application; instead he only applied for a bridging visa for the visa applicant. The review applicant sometimes attended the visits to the agent; they kept on paying money because they were gullible; they believed what he said but then they couldn’t find him and by then the visa applicant had stayed 4-5 years. They decided it was not good for her to stay in such circumstances and they organised for her to go home because she was not here legally.
The review applicant essentially blamed an unscrupulous agent who disappeared and did not do anything concrete for the visa applicant; she claimed he was the reason why the visa applicant stayed so long in Australia and wanted permanent residence. This however was inconsistent with the other available evidence. Records accessed by the Tribunal (combined with the visa applicant’s own evidence to the Tribunal and visitor visa application form) show that the visa applicant arrived in Australia on 5 November 1996 holding a visitor visa and sought to stay. She lodged an application for a Subclass 806 (family) visa AO residence special eligibility (special needs carer application). Her application was refused on 4 November 1999 and she lodged an application for review to the MRT, represented by an agent. There was a hearing which she attended with her agent, however after that was unsuccessful she then pursued her attempt to remain in Australia further by seeking Ministerial intervention and when that was refused she went home, after staying in Australia for 6 years. The Tribunal noted that the visa applicant gave evidence that she was aware of these steps taken on her behalf.
The Tribunal put to the review applicant pursuant to s.359AA of the Act its concerns that her evidence indicated that the family including the visa applicant had no idea of what was happening when she stayed in Australia so long, which was very different to the other evidence including that of the visa applicant. The Tribunal noted that this difference in the evidence indicated that she was not a witness of truth about her sister’s previous time and applications in Australia and it was difficult to accept her assertions about the visa applicant’s intentions on this occasion. In response, the review applicant said that she was not aware, she was so ignorant and yes there was an agent and he was doing things on the visa applicant’s behalf and she just believed everything that was said and she didn’t have a full understanding. Given the review applicant’s evidence that it was a family effort for the visa applicant to obtain a permanent visa and that the review applicant attended upon visits with the agent, the Tribunal is not satisfied that the review applicant is a witness of truth regarding the evidence about her sister’s previous 6 year stay after arriving on a temporary visitor visa.
A further concern held by the Tribunal was that the visa applicant had said that the reason why her applications previously to remain in Australia were a “mistake” were because she didn’t receive good enough advice to succeed in obtaining a permanent visa. As the Tribunal put to the applicant pursuant to s.359AA of the Act, this indicated that she might, on this occasion, try to obtain better advice on how to obtain a permanent visa (after arriving on a temporary visitor visa). In response the review applicant said that the visa applicant meant that she had been misguided and will not do this again, what was done in the past was not ideal and this time she will abide by the conditions. The Tribunal has considered this response but does not find it persuasive reasoning indicating that the visa applicant will not again try to remain in Australia or obtain a permanent visa.
The Tribunal has considered the review applicant’s submission that the visa applicant stayed last time to be with her sick mother and care for her, whereas this time it is her older sister who is sick but she is in a nursing home and does not require care and the relationship is not the same. This however is different to her earlier evidence that the visa applicant and the sister in the nursing home have a very special bond. The Tribunal notes the presence of that sister who is ill, and the review applicant and other family members in Australia, and given the visa applicant’s previous attempt to remain for a long period in Australia and to obtain permanent residence, her view that the mistake she made was to not obtain an agent good enough to help her succeed in her quest for a permanent visa, and the evidence which the Tribunal considered unsatisfactory as to the immigration process when the visa applicant was last in Australia, the Tribunal is not persuaded by either applicants’ assurances that she only intends a genuine temporary visit and then to return home.
The Tribunal noted that although the visa applicant has adopted two young children which are said to be an incentive for her to return after a visit, her own young children were not an incentive for her to return to the Philippines when she last remained away, application
in Australia seeking a permanent visa, for 5-6 years. Similarly, her husband on the last occasion was not an incentive for her to return after a visit. The Tribunal has given some weight to the assertion by the review applicant that the visa applicant’s husband is now sick. This does not, however, overcome the Tribunal’s concerns. The Tribunal has also considered the review applicant’s response to the concern that on the last occasion she stayed here for many years her husband and children were not an incentive to return. The review applicant said that the visa applicant was hoping last time to get permanent residence but it was a false hope.
The Tribunal notes that the Department’s concern was not that she had overstayed on the last occasion, but that she had arrived on a temporary visitor visa and then applied for a visa and stayed for years after her visitor visa had expired. The Tribunal accessed the visa applicant’s movement records and notes that she was not unlawfully present during that period; she had been granted a number of bridging visas and left before the expiry of the last one. The Tribunal is prepared to find (for the purposes of this application) that she complied substantially with the terms of the last visa held (a bridging visa relating to an ultimately unsuccessful visa application). However, it is the Tribunal’s concern that the visa applicant on that occasion did not consider her circumstances in the Philippines to be sufficient incentive to return. While acknowledging that those circumstances have changed somewhat, the Tribunal notes the incentives of the presence of relatives in Australia, and in particular the presence of a woman who was like a mother to the visa applicant and who has [an illness]. While the Tribunal acknowledges the relationship between the visa applicant and her ill sister, this does not overcome its concerns that she will seek to stay in Australia beyond the expiry of a visitor visa. The Tribunal has also considered the claims that on the last occasion the visa applicant did not intend to change her visitor visa to a permanent visa before she arrived; however the Tribunal does note the review applicant’s assertion that she thought her sister applied for and received a visitor visa for 12 months, which indicates that even initially the visa applicant was prepared to stay a significant period away from the Philippines in Australia.

The Tribunal is prepared to accept that there is evidence of financial capacity (in Australia) to pay for the costs of the trip, however this is not the only factor to consider. As put to the review applicant, there is significant poverty in the Philippines[1], which may encourage the visa applicant to stay and earn money for her family. When this was put to the review applicant she said that her sister was “old” and would not work. The Tribunal explored this argument, and it transpired that the visa applicant was three years older than the review applicant who was working. The review applicant then said that her sister would not like to do hard labour; the Tribunal suggested that there were jobs other than hard labour and the review applicant said she was not aware of that. The Tribunal does not have evidence that the visa applicant will seek to work and thus does not place any reliance on this. This does not however overcome the concerns raised above.
[1] According to the World Bank, there has been “extreme poverty” in the Philippines, which the
When the Tribunal weighs all of the above, it is not satisfied that the visa applicant only intends a genuine visit.
For the above reasons the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are not met.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Christine Cody
Member

authorities are working against: The Philippines has made some progress in its fight against extreme
poverty. As the Philippine economy continues to develop, the challenge of ensuring inclusive growth
will become more complex, and investment in human capital will be necessary to ensure that the
nation’s workforce is able to meet a rising demand for skilled labor.
to the Asian Development Bank, “Poverty in the Philippines”, in the Philippines, 25.2% of
the population lives below the national poverty line:

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Citations

Villegas (Migration) [2018] AATA 5888

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[2018] AATA 5888

11 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction